Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, CRL.A.No.2170 OF 2006 AGAINST THE ORDER/JUDGMENT IN SC 263/2001 DATED 11-09- 2006 OF ADDITIONAL SESSIONS JUDGE, (ADHOC)-III, THALASSERY AGAINST THE ORDER/JUDGMENT IN CP 28/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KUTHUPARAMBA
APPELLANT/ACCUSED: 1 KUNKAN S/O.KELAPPAN, MARADI HOUSE, KANICHAR AMSOM, MALAYAMPADI,, KOTTIYOOR, THALASSERY TALUK. 2 PRAKASAN , S/O. KELAPPAN MARADI HOUSE, KANICHAR AMSOM, MALAYAMPADI. BY ADV. SRI.P.P.RAMACHANDRAN RESPONDENT/COMPLAINANT: STATE OF KERALA (S.H.O.,KELAKAM POLICE STATION, KANNUR) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT. S.L. SYLAJA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No.2170 OF 2006 2
JUDGMENT
Dated this the 31st day of March 2021 The accused in S.C.No.263/2001 on the file of the Additional Sessions Judge, (Adhoc-III), Thalassery have filed
this appeal being aggrieved by the judgment dated 11.09.2006, whereby they have been found guilty of offence under Sections 55(g) of the Kerala Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to undergo simple imprisonment for a further period of two months each.
2. The case of the prosecution is that, on 17.03.2001
at 9.00 p.m, the accused were found in possession of 50 liters of wash in an aluminum vessel, and distilling apparatus for the purpose of distilling illicit arrack, at the shed near the courtyard of the house of the first accused. The offence was detected by PW1, who was the Sub Inspector of Kelakam Police Station, while he along with the police party had gone for arrack raid at Kanichar-Velluni-Kelakam area. The accused
CRL.A.No.2170 OF 2006 3 were arrested. The sample of the wash was taken and the remaining wash was destroyed at the scene of occurrence and according to him, the thondy articles were produced before the court below as per Ext.P3 property list. On the basis of the evidence on record, the court below found that the accused guilty of the offences and convicted and sentenced them as referred above.
3. Heard Sri.P.P.Ramachandran, learned counsel for the appellants and Smt.Sylaja, learned Public Prosecutor on behalf of the State.
4. The counsel for the appellants contended that the
entire investigation is vitiated since it has been carried out by an officer who did not have jurisdiction over the area. I find considerable force in the submissions. Admittedly, PW1, who detected the offence, is the Sub Inspector of Police of Kelakam Police Station and the offence had been committed within his jurisdiction. The investigation has been conducted by PW4 who was the Sub Inspector of Police of Maloor Police Station and it is stated that the investigation was as directed by the Circle Inspector, Peravoor. This Court has held that, even though the
CRL.A.No.2170 OF 2006 4 Police Inspector can exercise jurisdiction as an Abkari Officer, the same can be done only within the area which falls within his jurisdiction. PW4 could have acted as an Abkari Officer only within the area coming under the Maloor Police Station and he does not have jurisdiction over the Kelakam Police Station area. Such a jurisdiction cannot be granted by the Circle Inspector of Police and if at all there can be such a delegation, that can be done only by the Government. (See Kunchamma Pujari V. State of Kerala reported in [2019 (4) KLT 99]). Another contention raised by the counsel for the appellants was that, even though the seizure was on 17.03.2001, the contraband articles were produced before the court only on 23.03.2001, six days later. There is no explanation offered in the evidence on record justifying the delay in production of the contraband articles before the court. This court has held that
in the absence of proper explanation by the investigating officer, the delay of even one day is fatal for the prosecution. (See Ravi V. State of Kerala [2018 (5) KHC 352]). In the above circumstances, the judgment dated 11.09.2006 in S.C.No.263/2001 on the file of the Additional CRL.A.No.2170 OF 2006 5 Sessions Judge, (Adhoc)-III, Thalassery is set aside and the appellants are acquitted and set at liberty. The bail bonds, if any, executed by the appellants or on their behalf are cancelled. The appeal stands allowed. SD/- T.R.RAVI JUDGE LEK